(Oral)
1. This petition has been filed by the petitioner challenging the order dated 15.05.2018 passed by the District Judge, Agra in SCC Revision No. 25 of 2017 and also the order dated 26.05.2017 passed by the Judge, Small Causes Court, Agra in Misc. Case No. 20 of 2016. A further prayer has been made for this Court to issue a direction to allow the application Paper No. 4 Ga, 5 Ga and 11 Ga dated 31.05.2016 said to be pending before the Judge, Small Causes Court, Agra in Misc. Case No. 20 of 2016.
2. Learned counsel for petitioner, Mr. Manish Tandon, has argued that the petitioner is tenant of shop No. G-11 situated at ground floor of the premises, municipal number is 6/209, Bhairo Bazar, Agra.
3. SCC Suit No. 54 of 2015 was filed by the respondent No. 3 claiming herself to be owner and landlady of the property on the basis of a sale deed dated 30.08.2013 executed by the erstwhile owner. It was alleged in the plaint that the petitioner was tenant of the shop in question at the rate of Rs.3,000/- per month initially, later on increased to Rs.4,000/- per month and thereafter, to Rs.4,500/- per month, which was allegedly paid till 31.03.2015. It was agreed upon orally between the petitioner-tenant and respondent-landlady that the tenant shall pay Rs.5,000/- per month w.e.f. 01.04.2015 and also to vacate the premises in question on or before 31.03.2016. This promise was not kept by the tenant. It has been argued that no notice or summon was ever issued or received by the petitioner-tenant and the suit was decreed ex-parte by judgement and order dated 30.03.2016. A decree was prepared but no amount under the decree was mentioned by the learned Trial Court.
4. Execution Case No. 5 of 2016 was thereafter filed by the respondent-landlady and when the petitioner came to know of the decree dated 30.03.2016 she filed an application under Order 9 Rule 13 read with Section 5 of the Code of Civil Procedure, which was registered as Misc. Case No. 20 of 2016. The petitioner also filed an application under Section 17 of the Provincial Small Causes Court Act, 1887 making a prayer in the application that she may be permitted to deposit Rs.10,100/- in compliance of Section 17 of the Act, 1887 and may further be allowed to furnish security for payment of rest of the decretal amount in case the same is disclosed as the decree is silent about the amount to be paid by the petitioner-tenant.
5. This application paper No. 11 Ga was disposed off by the Judge, Small Causes Court by passing an order on 31.05.2016 permitting the petitioner-tenant to deposit Rs.10,100/- at her one risk. The petitioner deposited Rs.10,100/- before the Court.
6. The Respondent No. 3 filed objection to the application under Order 9 Rule 13 of Code of Civil Procedure on 14.07.2016 saying that the proviso to Section 17 of the PSCC Act, 1887 was mandatory and the entire decretal amount should be deposited by the tenant before an application for recall can be entertained. The respondent's husband is a senior advocate and a leading lawyer of the suit and he appeared as his wife's counsel in the aforesaid matter. The petitioner-tenant gave him an amount of Rs.75,000/- in cash which was accepted by him and in this regard an application paper No. 18 Ga was filed before the Trial Court on 04.08.2016 wherein the respondent's husband made an endorsement that he had received Rs.75,000/- from the tenant. The application paper No. 18 Ga remained pending.
7. Another application paper No. 22 Ga was also filed by the petitioner-tenant narrating the entire facts and making a prayer for disposal of the application under Order 9 Rule 13 C.P.C. as necessary compliance of the proviso to Section 17 of the PSCC Act, 1887 has already been made by the petitioner. Till date no decree in terms of the judgment and order dated 30.03.2016 has been prepared.
8. Again an application paper No. 24-Ga was filed by the petitioner-tenant making a prayer for disposal of the earlier applications. Another application paper No. 12 C was moved by the respondent No. 3 annexing a calculation chart with regard to the amount of Rs.85,100/-. The petitioner-tenant filed her objection to the said application moved by the respondent No. 3, landlady. The matter was heard by the learned Trial Court on 04.06.2016 where the learned Trial Court acknowledged that the tenant had paid Rs.85,100/- after the decree dated 30.03.2016 and before the application under Order 9 Rule 13 C.P.C came up for hearing before the Court.
9. However, it came to a conclusion that the deposit of the amount by the tenant was not before the filing of the application under Order 9 Rule 13 CPC as is required in the proviso to Section 17 of the PSCC Act. It has therefore rejected the application under Order 9 Rule 13 C.P.C for non compliance with the proviso to Section 17 of the Act.
10. The petitioner-tenant thereafter filed a revision registered as SCC Revision No. 25 of 2017. During the pendency of the revision the petitioner also deposited several amounts, the details of which are given in paragraph ? 27 of the petition. The petitioner-tenant deposited Rs.60,000/- on 08.02.2017, Rs.10,000/- on 31.08.2017, Rs.15,000/- on 26.10.2017 and Rs.15,000/- on 10.01.2018 i.e. almost Rs.1 lac besides Rs.85,100/- that she had deposited earlier before the learned Trial Court.
11. The Revisional Court also, it has been submitted by the learned counsel for the petitioner-tenant, referred to the mandatory provisions under Section 17 of the PSCC Act and has concluded that the entire decretal amount along with 9% interest ought to have been deposited before such an application under Order 9 Rule 13 C.P.C was moved. The compliance of proviso to Section 17 being mandatory there was no regularity in the judgment passed by the learned Trial Court dated 26.05.2017. The revision has therefore been rejected on 15.05.2018.
12. The learned counsel for petitioner submits that although the entire Section 17 of the PSCC Act has been quoted by the learned Revisional Court, it has not looked into the provision whereby the judgment debtor is required to give security for the performance of the decree for compliance of the judgment for which an application can be made while filing his application under Order 9 Rule 13 C.P.C. for recall and he has referred to a judgment passed by the Hon'ble Supreme Court in Kedar Nath Vs. Mohan Lal Kesarwani, 2002 (1) ARC 186 the Hon'ble Supreme Court in paragraphs ? 9 and 10 has referred to the discretion to be exercised by the Court in case a previous application has been moved by the applicant seeking discretion/direction of the Court for leave to furnish security and the nature thereof.
13. The Supreme Court has observed that the proviso of Section 17 does not provide any extent of time by which such application for dispensation for prior deposit of the decretal amount may be filed. The Court has observed "We think that it may be filed at any time up to the time of presentation of application for setting aside ex parte decree or for review and the Court may treat it as a previous application. It is then for the Court to make a prompt order. The delay on the part of the Court in passing an appropriate order would not be held against the applicant because none can be made to suffer for the fault of the Court."
14. Shri Manish Tandon has also referred to a judgment rendered by this Court in Badruddin and others Vs. Additional District Judge, Varanasi and others, 2014 (5) AWC 4430 and to the observations made by a Coordinate Bench in this judgment in paragraphs ? 28, 29 and 30 thereof. The Court after looking into all facts and circumstances of the case has observed that once it was not doubted that the decretal amount had already been paid with the Court and the application seeking permission became pending on that date, the applicant can not be held guilty of non compliance of the requirement under Section 17 of the Act, 1887. This Court observed that although it is true that requirement of Section 17 is mandatory, in the facts and circumstances of the case, there was no reason to non suit the tenant on a hyper technical ground.
15. The learned counsel for the respondent No. 3, on the other hand, has argued on the basis of the judgment rendered in Vijendra Kumar Vs. Bhagwat Dayal and others, 2009 (6) ALJ (NOC) 953 (All.) wherein a similar kind of decree had been brought to the notice of this Court where in the operative portion no mention of the decretal amount was made, but a direction had been issued for recovery of arrears of rent, interest and cost of service of notice and for damages for use and occupation of the accommodation by the tenant till 04.03.1984 i.e. till the time of filing of the suit. Further damages pendentelite and for future use and occupation of the property in question had however been quantified at Rs.175/- per month.
16.This Court had observed in Vijendra Kumar (supra) that the operative portion of the judgment has to be read along with and in the context of the observations made in the foregoing paragraphs of the judgment where details of the amount to be deposited by the tenant had been mentioned. Therefore, the revisionist could not take shelter behind the plea that since no specific amount was mentioned in the decree, he was unable to calculate the decretal amount correctly.
17. The learned counsel for the respondents has also relied upon a Division Bench decision of this Court in Raj Kumar Makhija and others Vs. M/s. SKS and Co. and others, 2000 (3) ARC 117 that it is duty of the applicant to calculate the correct decretal amount as per the decree and Court is not required to get the decretal amount calculated for the applicant. If there is any shortfall due to calculation made for any reason its consequences will follow and wrong calculation will provide no shelter to such an applicant.
18. It has been held by the Division Bench that any application filed by the tenant-defendant to make good the shortfall either in the deposit of security after expiry of period of limitation is of no consequence. The application for setting aside the ex-parte decree would be dismissed for non compliance of the proviso to Section 17 of the Act. It has also been held that any amount deposited after expiry of period of limitation will also be taken into consideration for judging the compliance of the proviso to Section 17 of the Act. However, it has also observed that the Court can ignore the shortfall in deposit of a negligible amount on the principle of deminimis as explained in the body of the judgment. It has held further that there is no provision conferring power on the Court to condone the delay in making deposit and provisions of Section 5 of the Limitation Act will not be applicable to the deposit contemplated under the proviso to Section 17 of the Act.
19. The Larger Bench Reference has thus been answered holding that the provisions under Section 17 of the PSCC Act, 1887 are mandatory.
20. I have considered the arguments raised by the learned counsel for the petitioner-tenant and also by the learned counsel for the respondent. No doubt that the provisions of Section 17 of the PSCC Act are mandatory in nature. It is, however, true that the petitioner had deposited Rs.85,000/- before the application under Order 9 Rule 13 of Code of Civil Procedure came up for disposal before the learned Trial Court. This fact is admitted to either of the parties that at the time when the suit was decreed it had been held by the Judge, Small Causes Court that the tenant was in arrears of payment of rent w.e.f. 1st of April, 2015 at the rate of Rs.5,000/- per month. The rent due at the time of filing of the SCC Suit was for five months, and for fourteen months, at the time when the Restoration Application was moved by the petitioner. The petitioner deposited Rs.10,100/- at the time of filing of the application for recall and during the pendency of her application for determination of the correct decretal amount, she deposited another Rs.75,000/-, which was received by the husband of the respondent No. 3.
21. The learned counsel for respondent has pointed out that in the order sheet there is a mention that Rs.70,000/- alone has been received under protest. Learned counsel for the petitioner-tenant has pointed out page No. 76 of the paper book which is application paper No. 18-Ga and on the left-hand side margin there is an endorsement by the husband of respondent No. 3, who was also an advocate of the respondent No. 3, that he has received Rs.75,000/- from the tenant without prejudice and under protest. This endorsement dated 04.08.2016 has been very clearly made on the application dated 04.08.2016. Therefore, the observation on the order sheet appears perhaps to be a typographical error and deserves to be ignored.
22. The bonafide intent of the tenant has undoubtedly been established in making payments @ Rs.5,000/- per month and also depositing some amount extra i.e. to the tune of Rs.10,100/- from a perusal of the papers brought on record. The intention of adding the proviso to Section 17 in the Provisional Small Causes Court Act, 1887 can be gathered from the language of the proviso. It was added to avoid the possibility of a litigant taking advantage of Recall Application being moved without first establishing his bonafide to pursue the litigation further, and to avoid the decree holder from being prejudiced due to the pendency of the litigation.This Court, therefore, feels it appropriate to set aside the order passed by the two learned Courts below with the observations that the tenant cannot be non-suited on a hyper technical ground when she had already deposited Rs.85,100/- during the pendency of application under Order 9 Rule 13 C.P.C.
23. The matter is remanded to the learned Trial Court to consider afresh the application for recall and pass appropriate order thereon in accordance with law within a period of two months from the date a certified copy of this order is produced before the Court concerned.
24. The petition is partly allowed to this extent.
Order Date :- 30.5.2018 LBY